Chapter 4
Previous work

The 2007 Law Commission Report

4.14In 2004, the Commission was asked to consider further the implications of repealing the partial defence of provocation. In 2007, the Commission published The Partial Defence of Provocation (the 2007 Report).

4.15Recommending repeal of provocation in the 2007 Report, the Commission opined that the question was “not whether something should be done about section 169, but what should be done about it”:206

We encountered very widespread consensus across a substantial majority of stakeholders that the present operation of section 169 of the Crimes Act 1961 is unsatisfactory. Even the defence bar (which was the principal constituency defending the existence of the section, on the basis that it performs a useful and necessary function in the criminal justice system) indicated that reform of the partial defence framework would be supported to expand and clarify its scope; they were opposed to the repeal of partial defences, rather than particularly wedded to the current form of section 169…

Broadly, stakeholders’ views as to the appropriate remedy were twofold. Those who considered that it is important to involve juries in the assessment of relative culpability, and similarly important to signal reduced culpability by means of a manslaughter verdict, favoured reform of the partial defence framework. This opinion was not wholly confined to the defence bar; some (a small minority) of Crown Solicitors shared it, as did some in the mental health area…

Others agreed with our view that dealing with the issues on sentence, with the aid of a sentencing guideline addressing section 102 of the Sentencing Act 2002, could suffice or indeed be preferable… However, some – particularly the Ministry of Health and some of the women’s groups – offered cautious or conditional support for this option because no draft guideline was available for their review…

4.16While sentencing law was the Commission’s reform focus, it acknowledged that other options included introduction of a “smorgasbord” of partial defences or a single generic partial defence.207 It rejected both.208 A “smorgasbord” would be inescapably arbitrary, since “[t]here is no way of articulating the distinction between what is properly to be regarded as a partial defence, and what is “merely” a mitigating circumstance”.209 A generic defence would be simpler, but the Commission doubted juries have any particular capacity to arbitrate who is and is not properly labelled a “murderer”.210 The Commission considered that:211

The reality probably is that, in the absence of any legal guidance, the only delineation will be the extent to which a jury sympathises with various defendants and their predicaments. This has the potential to reduce homicide to a lottery: it is an invitation to jurors to dress up their prejudices as law, and substantially increases the risk that more weight will be placed on jury composition and the advocacy skills of defence counsel than on the legal merits of the case.

4.17The 2007 Report also concluded that a fundamental argument against retention or reform of provocation was that the defence was prone to legitimise violent anger:212

There is one further and final issue, that to our minds much more fundamental than the legal, conceptual and practical difficulties already canvassed. Section 169 excuses a homicidal loss of self-control, in the face of a provocation of such gravity that it would have prompted a person with ordinary self-control to do likewise. The defence is thus open-ended about the precise emotions that might be driving the defendant; in other words, on its face, provocation is not necessarily confined to an angry loss of self-control, as opposed to one prompted by fear or sympathy. However, anger is the context in which it is commonly understood to operate, and is most frequently used. We would thus argue that the defence puts a premium on anger – and not merely anger, but homicidally violent anger. This, to our minds, is or should be a central issue in considering whether reform is required: out of the range of possible responses to adversity, why is this the sole response that we choose to partially excuse? Ultimately, issues such as the sexist and heterosexist bias of the provocation defence, that are accorded considerable weight in the literature, strike us as relatively immaterial, when weighed against the larger question of how we, as a society, would wish to respond to violence.

4.18The Commission acknowledged that repealing provocation would limit the options for “battered” defendants but considered that, for most such defendants:213

[S]elf defence will tactically offer a preferable alternative to provocation, because it results in an acquittal. We adhere to the Law Commission’s previous view that provocation is not benefiting battered defendants sufficiently to warrant its retention, and our review of case law confirms this… While provocation may in the past have offered one option for some battered defendants in New Zealand, it has also arguably been something of a mixed blessing. Although we were not able to confirm it in our own review of recent New Zealand homicide cases, there is a compelling case in the literature to suggest that provocation is a defence typically working against, rather than for, battered defendants – by the same violent and controlling jealous spouses that have been the subject of much of the feminist critique of this defence.

4.19In line with the Ministry’s decision not to amend section 48, the Commission considered repealing provocation would not require any other legislative amendment to address the needs of primary victims of family violence. Central to this conclusion was the Commission’s view that section 48 involved a relatively generous test, under which the nature of the circumstances in which the defendant uses defensive force is a subjective enquiry able to cover a wide range,214 with the objective limb of the test confined to the degree of force used in response to those (perceived) circumstances.
4.20The 2007 recommendations were consistent with the 2001 Report. In neither Report did the Commission demur from concluding that New Zealand’s provocation defence was, as a matter of theory and practice, irredeemably problematic. In both reviews, the Commission preferred that mitigating factors be matters for sentencing, not verdict, and placed weight on sentencing reform. In the 2007 Report, the Commission recommended sentencing guidelines addressing the “manifestly unjust” test in the Sentencing Act, which it anticipated would help guide the length of finite sentences in particular categories of case, including homicides committed by primary victims of family violence.215

4.21Despite the 2007 Report’s firm recommendation, provocation was not immediately repealed. The Crimes (Provocation Repeal) Amendment Act 2009 was passed, by an overwhelming majority, in December 2009.

206Law Commission, above n 8, at [151]–[154].
207At [155].
208At [183].
209At [162].
210At [166].
211At [166].
212At 11.
213At [121].
214At [123]–[124].
215At [206]–[207].